Earlier this week the NZ Herald uncovered the story of Sultan Ali Abdul Ali Akbari who had the threat of deportation suspended by Immigration New Zealand, even though he had committed multiple crimes of sexual assault. The writer has to ask: did the Minister of Immigration overreact by temporarily withdrawing INZ’s ability to make such decisions?

To see why this might be so, it is first of all necessary to understand the powers that Immigration was given. Akbari has been a Resident for a few years, and under the Immigration Act a recent Resident automatically becomes liable for deportation if they commit an offence in New Zealand. However, the Minister can decide, on a case by case basis, to suspend or even cancel that liability for deportation. This power is one of “absolute discretion”. As the term suggests, it is very broad and is not usually meant to be limited by particular criteria or policy. Every case is different and may call for a unique approach.

“I have made my expectations very clear when it comes to deportation decisions involving offending of this nature and those expectations are not being met. So I am temporarily suspending Immigration NZ’s decision making authority until I have confidence that the decisions being made are consistent with my expectations.”

There is a problem here. How can the Minister set up “expectations” of what is to be done when the decisionmaking power involved is meant to be an absolute discretion? Now, it is all very well for Government to set up policy around general powers of decision in other situations, when no guide is given in the law as to how decisions will be made. Policy like this is being written all the time. But in this case the power is described as “absolute”.

So, has the Minister already been writing de facto legislation for his officials to follow when using his authority? It certainly sounds like he has already done so in the past, and he is going to reinforce it now. It is fair to ask if the Minister is in fact acting unlawfully in telling Immigration officers what to do with this delegated authority.

True, section 380 of the Act states: “A delegation may be made subject to such restrictions and conditions as the Minister thinks fit”, and so that provides an out. But if that is so, where are those rules kept? They are certainly not published in Immigration’s Policy Manual. What we must conclude is that what was “absolute” is no longer “absolute” when it is not the Minister himself who decides.

We cannot presently know what directions have been given or will be given. Are certain nationalities or religious groups excluded from having their deportation liability suspended just because of that status? Are you out of luck if you are from Somalia? Or if you are a Moslem? Personally I think that is unlikely – but we just do not know.

So, back to the first question: Did the Minister overreact? It is worth reflecting on Akbari’s profile. According to the Herald, he came here as a Resident in 2012, in his mid-50s. This raises the possibility that he was accepted as a refugee on political or other grounds, although such details are kept strictly confidential. This is significant because New Zealand has obligations under the Refugee Convention not to return someone to the threat of serious harm unless they are a risk to national security or they have been convicted of a “particularly serious crime” (Article 33). The Parole Board directed his release in January this year, saying that his risk of reoffending would be mitigated by the support structures he could call upon in the community. The point here is that his criminal offending is not the whole story, and it was not just Immigration New Zealand that was lenient upon him.

But, of course, it became a news story. And it’s Election year. Do we have more of these sudden-death directives from Government to look forward to in the next few months? We will try to keep up with the play – but, as always, the immigration landscape continues to change from week to week, and it is likely that there is more excitement ahead as September draws closer.